Lipps v. Crowe

On August 16, 1926 the plaintiff, Edward J. Lipps, executed a deed conveying to Margaret Howard an "undivided one-half interest as joint tenant" in premises owned by him. The habendum clause provided that she was to have and to hold the premises "as joint tenant with the party of the first part (the plaintiff), and not as tenant in common." The grantee died intestate on July 28, 1943, and the defendant Denis Crowe, one of her heirs-at-law, claims an interest in the property, contending that the tenancy was in common and not joint. The plaintiff claims title as surviving joint tenant and seeks summary judgment to quiet title. The question for determination is whether or not the aforesaid deed effectively created a joint tenancy.

The essential characteristics of a joint tenancy are the four unities of interest, title, time and possession, and their coexistence, for, if any is lacking, there is no joint tenancy. New Jersey Title Guarantee & Trust Co. v. Archibald , 90 N.J. Eq. 384 (Ch. 1919); Reeves on Real Property, page 957; 4 Thompson on Real Property (perm. ed.) , § 1776, page 312.

"The requirement of the four unities expresses in an artificial way the basic idea that cotenants hold as a unity with a community of interest between them, since if they take as one they must take at the same time, by the same deed or feoffment, and must have interests which are identical. * * * The requirement of the four unities necessarily arose as a result of the basic concept rather than as prerequisites to the creation of the estate." 2 American Law of Property (1952), § 6.1, pages 4 and 5.

The defendant argues that since the plaintiff had acquired title through a prior deed and subsequently conveyed an undivided one-half interest directly to Margaret Howard, two requisites for a joint tenancy -- the unities of interest and time -- are lacking. He urges that the interests of joint tenants must be acquired by one and the same conveyance.

At the early common law such a contention would have been meritorious. 2 Blackstone's Commentaries , § 180 and § 181. If the plaintiff had executed a deed to an intermediary who in turn conveyed to the plaintiff and Margaret Howard as joint tenants, unquestionably the title would have been vested in them as such tenants. Until comparatively recent days the cautious conveyancer would resort to the use of a conduit whenever a change was being made in the nature of a grantor's estate. Hence, if either husband or wife held title to real estate in his or her individual name and desired that title be in them as tenants by the entirety, the common practice was to use an intermediary. So ingrained was this procedure that some attorneys still persist in it, notwithstanding authority for the validity of direct conveyance. Formerly, when separate acknowledgments were required to be taken and before the Married Woman's Act, there may have been good reason for the practice, but today there is hardly any need to use an intermediary. "It is now being held that such a circuitous procedure is outmoded and that a direct conveyance is permissible, the ancient unities to the contrary notwithstanding." 2 American Law of Property (1952), § 6.2, page 9. The trend of modern cases is to regard the creation of a joint tenancy or tenancy by the entirety just as valid if made directly between grantor and grantees as it would be if made through a third person. R.S. 37:2-18; R.S. 46:3-17; R.S. 46:3-17.1; Hallanan v. Hamilton , 104 N.J.L. 632 (E. & A. 1928); Schumann v. Curry , 121 N.J. Eq. 439 (Ch. 1937); Switzer v. Pratt , 237 Iowa 788, 23 N.W. 2 d 837 (Sup. Ct. 1946); Edge v. Barrow , 316 Mass. 104, 55 N.E. 2 d 5 (Sup. Jud. Ct. 1944); Colson v. Baker , 42 Misc. 407, 87 N.Y.S. 238 (Kings. Cty. Ct. 1904); In re Klatzl's Estate , 216 N.Y. 83, 110 N.E.

"In all references to the 'four unities' requisite to create a joint tenancy, I find nothing that prevents their existence or creation by the act of the grantor for himself and another as well as by his act for two other persons."

In In re Horler's Estate, supra , a wife conveyed to her husband "an undivided one-half interest and estate * * * so that the party of the first part and the party of the second part shall hold and own the same as joint tenants and not as tenants in common * * *." It was asserted there that there was no unity of title because the wife derived her title from her grantor and the husband derived his from his wife. In rejecting this contention, the court said:

"But it is unity of title in the joint tenancy with which we are concerned. Therefore, if the wife, as holder of the fee of the entire property, could by a deed to her husband, without the intervention of a third party, create in her husband and herself a joint estate, there would be unity of title and of time, for the estate would be created at one and the same time by one instrument. The reason for requiring the intervention of a third party has disappeared since the enactment of the various acts with respect to married women. A married woman is free to deal with her property as she sees fit. Being free to convey it to her husband, so as to alienate her entire ...

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